MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFâS
MOTION FOR SUMMARY JUDGMENT AND DEFENDANTâS CROSS-MOTION FOR
D. Wilson, Justice of the Superior Court
suit arises out of a 2017 fire at the home of Plaintiff Wenda
Aquino, for which Aquino sought payments under her
homeownerâs insurance policy. That policy was issued to her
by Defendant United Property & Casualty Insurance Company
("UPC"). UPC denied payment to Aquino on the ground
that the damage was intentionally caused by Aquinoâs
fiancé, who was a named co-insured on the policy, and
that the homeownerâs policy excludes recovery by any insured
in such a circumstance.
filed this suit seeking declaratory and other relief to
reform the homeownerâs policy to provide for coverage of her
claimed damages, and she seeks damages for unfair and
deceptive trade acts and practices by UPC under G. L. c. 93A
and G. L. c. 176D. In the present motion, Aquino seeks
summary judgment on Count I (declaratory judgment), Count II
(breach of contract), and Count VII (reformation of the
policy). UPC has cross-moved for summary judgment on all
counts in the Plaintiffâs complaint. For the reasons stated
below, the Plaintiffâs motion is ALLOWED IN
PART and DENIED IN
PART, and the Defendantâs motion is
ALLOWED IN PART and
DENIED IN PART.
following facts, drawn from the summary judgment record, are
uncontested. Some facts are reserved for discussion below.
2014, Aquino and her fiancé, Kelly Pastrana, purchased
a two-family residential dwelling located at 80 Warren Avenue
in Chelsea, Massachusetts (the "Property"). Both
Aquino and Pastrana are listed on the deed and mortgage for
the Property. UPC issued a homeownerâs insurance policy to
Aquino and Pastrana covering the Property ("the
Policy") that was effective at the time of the events at
issue in this case.
22, 2017, a fire caused extensive damage to the Property. For
purposes of the present motions, the parties do not contest
that the fire was caused by an intentional act of Pastrana,
and that Aquino was innocent of any involvement. Pastrana
died in the fire.
the fire, Aquino asserted several claims under the Policy for
the damages she sustained, including claims for (a)
destruction of the building situated on the Property, (b)
destruction of the driveway, walkway, patio, retaining wall
and stairs/railings on the Property, (c) loss of personal
property contained in the building situated on the Property,
(d) loss of rental income and additional living expenses, (e)
costs associated with enforcement of "ordinance or
law" against Aquino as owner of a Property containing a
fire-damaged and unsafe structure, (f) destruction to
landscaping, trees and shrubs, and (g) debris
August 18, 2017, UPC denied its liability for Aquinoâs
claims, citing the Intentional Loss Exclusion provision in
the Policy. That provision states, in relevant
SECTION I - EXCLUSIONS
A. We do not insure for loss caused directly
or indirectly by any of the following....
8. Intentional Loss
Intentional Loss means any loss arising out of any act an
âinsuredâ commits or conspires to commit with the intent to
cause a loss.
In the event of such loss, no âinsuredâ is entitled to
coverage, even "insureds" who did not commit or
conspire to commit the act causing the loss.
and Pastrana are both named insureds on the Policy.
brought the present suit against UPC to recover the damages
she sustained in the fire. There are eight counts in the
complaint: Count I is for declaratory judgment; Count II is
for breach of contract; Count III is for breach of the
implied covenant of good faith and fair dealing; Count IV is
for promissory estoppel; Count V is for equitable estoppel;
Count VI is for waiver; Count VII is for reformation of the
policy; and Count VIII is for unfair and deceptive trade acts
and practices. In the first seven counts, Aquino seeks
payment of all of her claimed damages under the Policy, as
well as attorneyâs fees, costs, and interest. In Count VIII,
Aquino seeks relief under G. L. c. 93A and G. L. c. 176D for
alleged unfair and deceptive trade acts and practices by UPC,
for which she seeks double or treble the amount of her actual
damages, as well as attorneysâ fees, costs, and interest.
judgment is properly entered "if the pleadings,
depositions, answers to interrogatories, and responses to
requests for admission under Rule 36, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Mass. R. Civ. P. 56(c);
see Miramar Park Assân, Inc. v. Dennis, 480 Mass.
366, 376 (2018). "The moving party bears the burden of
affirmatively demonstrating that there is no triable issue of
fact." Ng Bros. Constr. v. Cranney, 436 Mass.
638, 644 (2002). The interpretation of an insurance policy
raises a question of law that is appropriately resolved on
summary judgment. See Massachusetts Bay Transp. Auth. v.
Allianz Ins. Co., 413 Mass. 473, 476 (1992).
Whether Aquino can recover under the policy
moves for summary judgment on Count I (declaratory judgment),
Count II (breach of contract), and Count VII (reformation),
arguing that the Policy must be reformed to comport with
certain statutory requirements, and that UPC is in breach of
the Policy as reformed. UPC cross-moves for summary judgment
on the same Counts.
parties do not dispute that the provision of the Policy
governing intentional loss is unambiguous. That provision, if
enforced as written, would impose a joint obligation on
insureds not to cause intentional loss, and would thus
preclude any recovery by Aquino as a consequence of the
intentional act of Pastrana.
argument is rather that the Policy is not enforceable as
written and must be reformed pursuant to G. L. c. 175, §
99 to allow for payments to her as an innocent co-insured
party. That statute, entitled "Standard Form of Fire
Policy," mandates the form of fire insurance policies in
Massachusetts. Ideal Fin. Servs., Inc. v. Zichelle,52 Mass.App.Ct. 50, 66 (2001). The statute provides that
"[n]o company shall issue policies or contracts which
... insure against loss or damage by fire ... to property or
interests in the commonwealth, other than those of the
standard forms herein set forth," subject to certain
exceptions not raised here. G. L. c. 175, § 99. Aquino
argues that the Intentional Loss provision provides for a